Smt K. Vanaja, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 2053 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
               WRIT PETITION No.3646 of 2021
ORDER:

This Writ Petition is filed questioning the initiation of

proceedings under Section 145 of Cr.P.C. by the 3rd

respondent, despite pendency of the civil suits and other

litigations.

This Court has heard Sri Maheswara Rao Kuncheam,

learned counsel for the petitioners, learned Government

Pleader for Revenue appearing for respondents 1 to 3, learned

Government Pleader and Home appearing for respondent No.4

and Sri Ch. Venkat Raman, learned counsel for the 5 th

respondent.

Learned counsel for the petitioners submits that the

invocation of Section 145 Cr.P.C. and the initiation of

proceedings thereunder are totally incorrect. He points out

that there are civil cases pending with regard to the same

property. The 1st petitioner is claiming title to the property

through a sale deed of the year 2019. She had also secured

building permission for construction and completed the

construction of the building in Ground + 2 floors. The 5th

respondent filed a suit in O.S.No.243 of 2015 for a specific

performance of an agreement of sale dated 19.12.2012. This

suit is pending and no interlocutory orders are granted in this

suit. In addition, the 5th respondent also filed a case under

Land Grabbing O.P.No.103 of 2019, whereunder the petitioners

are shown as respondents. The said case is also pending. In

this case also no interim order was granted. Learned counsel

submits that having failed to get interim orders the 5 th

respondent used her influence and got a report prepared by the

police department, which is forwarded to the 3rd respondent,

who immediately issued the impugned proceedings under

Section 145 Cr.P.C. Learned counsel points out that the 4th

respondent-Inspector of Police gave a letter on 27.01.2021, and

on the next date itself the impugned order was passed. Learned

counsel for the petitioners submits that absolutely no enquiry

was made into the averments of the said letter which refers to

the pendency of the civil suits also. It is also submitted that

while passing the impugned order the mandatory provisions

under Section 145 Cr.P.C. are not at all followed. Learned

counsel submits that there is no application of mind nor

consideration of facts and circumstances. The procedure

stipulated under Section 145 Cr.P.C., inviting objections, has

also not been followed. Learned counsel relies upon the case

law which is annexed to the Writ Petition, including Ram

Sumer Puri Mahant v State of U.P. and Others 1 and

judgments of the learned single Judges of this Court in

Mettupalli China Kondappa (Died) by LRs., and others v

Ramsetty Rama Rao and another2, Dr.Ratnam and others

v Sub-Divisional Magistrate and Revenue Divisional

AIR 1985 SC 472

AIR 1964 AP 168

Officer, R.R.Dist., and Others3 and also Janga Mariamma

v Revenue Dvisional Officer and Sub-Divisional

Magistrate, Macherial, Adilabad District and Others4 to

argue that the mandatory procedure under Section 145 Cr.P.C.

should be followed and that orders under Section 145 Cr.P.C.

cannot be passed when civil suits are pending.

On behalf of the revenue department-4th respondent

argued that the action taken is correct and that the Court

should not interfere in this matter. It is also submitted that

the 3rd respondent considered the fact that there is likelihood

of breach of peace and public tranquility he has passed the

order. It is argued that the High Court of Andhra Pradesh in

W.P.No.22852 of 2020 gave a direction to the 4th respondent to

consider the representation of the petitioner therein (present

5th respondent). In accordance with the said orders the 4th

respondent gave a report to the 3rd respondent to initiate the

proceedings under Section 145 of Cr.P.C. Therefore, learned

Government Pleader for Home justifies the action.

On behalf of the 5th respondent, learned counsel justifies

the action of the 3rd and 4th respondents and he states that as

the petitioners and others started construction in the site in

mobilizing the men and material, the 5th respondent had to

initiate the action as warranted under law. He also urges that

as the rights of the parties are not crystallized and as the suit

2000 (1) ALD (Crl.) 528 (AP)

2008 (3) ALT (Crl.) 244 (SB)

etc., are still pending this Court should not interfere at this

stage. As the order merely directed the status quo to be

maintained and the preservation of the property.

COURT:- This Court after considering the facts and

circumstances and the counters filed by both the respondents,

notices that there is no dispute about the pendency of the suit

in O.S.No.243 of 2015 on the file of the IV Additional District

Judge, Tirupati. It also admitted that the L.G.O.P.No.103 of

2019 is pending, which is filed by the 5th respondent against

the petitioners. In both these matters no final adjudication has

taken place and final orders have not been passed.

What is interesting here is the 5th respondent filed a

private complaint and the same was referred to the police. They

registered a Crime No.253 of 2019 and after investigation

closed the same as "civil" in nature. The police also admitted

that civil suit and the Land Grabbing OP are pending. It is not

clear on what basis the 4th respondent came to a conclusion

that there will be a likelihood of breach of peace. A reading of

the letter addressed to the 3rd respondent shows that the first

four pages are only a recitation of facts. While noticing the

existence of documents including the sale deeds (which are

referred to as a false and creative) the 4th respondent again

states that the "B" party members did not produce any

documents. In any view of the matter, as a responsible police

officer he should have a mentioned on what basis he has come

to a conclusion that there is a likelihood of breach of peace etc.,

Nether his information for arranging at a conclusion or the data

for coming to the said conclusion are visible from a reading of

this. In the opinion of this Court the "formation of the opinion"

is not an empty formality. It should be based on cogent

material which indicates a clear and immediate threat to public

peace etc.

Equally surprising is the fact that within one day i.e.,

28.01.2021 the Mandal Educational Officer - 3rd respondent

also came to the same conclusion. The impugned order also

does not disclose that he has considered the material and come

to a conclusion that there is a likelihood of breach of peace and

tranquility. The pendency of the civil suits and the cases is

also noted by him. Yet, without discussing the issues and in

particular the need for invoking Section 145 of Cr.P.C., the

impugned order is passed. The order in question does not refer

to any clear incident or reports from the police with categorical

details to enable the 3rd respondent to come to this conclusion.

It is also clear that the 3rd respondent does not have any

independent information of his own. In addition, the need or

the necessity for passing such an order without hearing any of

the parties is not clear. The grounds, on which he was satisfied

the likelihood of breach of peace is not visible from the record.

He should also indicate grounds of a likely and immediate

threat to public order and tranquility. Apart from recording the

satisfaction before making an order he should also immediately

order notice to both the parties in the dispute to appear before

him on a specified date and time to put forth their case. The

same is also not done in their case. Therefore, this Court has

no hesitation to hold that the impugned order was passed

without any application of mind and it has to be held as an

arbitrary exercise of power.

The case law cited by the learned counsel for the

petitioners are also squarely applicable to the facts and

circumstances of the case. The judgments cited in Dr.Ratnam

case (3 supra) also had similar facts. There also the Executive

Magistrate clearly referred to the police officer's report and

passed the order. Learned single Judge held that the

Magistrate has failed to record his opinion. It is also noticed

that the Magistrate also failed to call the parties to file their

statements, which is mandatory under Section 145 (1) Cr.P.C.

To the same effect the judgment of the learned single Judge in

Janga Mariamma case (4 supra).

Last but not the least is the issue that once there are

civil disputes pending and the questions are being adjudicated

by a Court of competent jurisdiction the Executive Magistrate

should not have passed the order in question.

An emergency or imminent situation warranting the

passage of such an order is also not there. The record does not

disclose the need or the necessity for the Magistrate to pass an

order.

In this view of the matter, this Court holds that the Writ

Petition is to be allowed. Accordingly, the Writ Petition is

allowed, setting aside the proceedings in Roc.No.A/42/2018,

dated 28.01.2021. In the circumstances, there shall be no

order as to costs.

Consequently, the Miscellaneous Applications pending,

if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU,J Date:27.04.2022 Ssv